Dr. Joseph Knippenberg, professor of politics, shared the following thoughts in observance of Constitution Day, September 17.聽
“I have been teaching constitutional law for more than thirty years. For most of that time, I鈥檝e struggled with teaching the Supreme Court鈥檚 freedom of speech decisions, not because I have major quarrels with the doctrines applied, but because the facts of the cases seemed so remote from our contemporary concerns.
Take for example Schenck v. United States, the 1919 decision from which we get the 鈥渃lear and present danger鈥� doctrine. That case involved anti-war and anti-draft actions undertaken by Charles Schenck, the general secretary of the Socialist Party. Then there鈥檚 the 1925 decision in Gitlow v. New York, which dealt with a manifesto calling for the overthrow of the 鈥渂ourgeois state鈥� issued on behalf of the Left Wing Section of the Socialist Party. In Dennis v. U.S. (1951), the Court upheld as an application of the clear and present danger doctrine the conviction of members of the Communist Party of the U.S.A. under the Smith Act, which criminalized advocating the overthrow of the U.S. government.
My students consider the facts of these cases and wonder what all the fuss was about. Where are the burning issues, the difficult choices, that call for statesmanlike judgment on the part of our elected officials, sober understanding on the part of our citizens, and fine distinctions on the part of our judges? Was the 鈥淩ed Menace鈥� any more serious a threat than Dennis the Menace, they might ask, if they had even heard of the latter?
I suppose that on this Constitution Day (September 17th) I can鈥攁t least as a teacher, if not as a citizen鈥攂e grateful for our new political extremists on the right and the left. Their speech is unpopular, if not downright repulsive and dangerous. We all face the temptation of using the law somehow to silence them, to prevent them from giving offense or otherwise doing harm.
This is where those old cases come alive, where the facts that gave rise to them seem almost like current events. Perhaps the old case that best fits our present moment is Brandenburg v. Ohio (1969), which involved a KKK leader saying, among other things, 鈥渋f our President, our Congress, our Supreme Court, continue to suppress the white, Caucasian race, it鈥檚 possible that there might have to be some revengence [sic] taken.鈥� In throwing out Brandenburg鈥檚 conviction under Ohio鈥檚 Criminal Syndicalism Act, the Court insisted that his words were 鈥渕ere advocacy,鈥� not 鈥渋ncitement to imminent lawless action.鈥�
I can inquire with my students whether this is a reasonable and meaningful distinction. Does it make sense to distinguish, as our laws as interpreted by the courts do, between ideas and actions, with the former sanctionable only when they lead directly to the latter, and (of course) when the latter tend to harm life, limb, liberty, or property in ways that are typically punished by the state? Can I be punished for, say, blogging or rapping about violence to some racially, ethnically, or religiously defined Other, or only for actually committing such violence? Is so-called hate speech protected by the First Amendment? Should it be? If it can be legally and constitutionally proscribed, who gets to define 鈥渉ate鈥�?
These are not easy questions, and that鈥檚 precisely why they can be so engaging in the classroom. But they鈥檙e not really questions unless we have a prior, principled commitment to freedom of speech, as articulated in the First Amendment. Few have argued that that freedom should be absolute, always and everywhere unlimited. But without an assertion of that freedom as our point of departure, it is too tempting not just to silence and sanction the imminently violent, but also the 鈥渕erely鈥� unpleasant and offensive, as defined by those of us who happen to have power at the moment.
For that ringing declaration of principle, found in the First Amendment, I am eternally grateful, not just as a teacher but as a citizen. So should we all be on this Constitution Day.”
